Access to Counsel

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In immigration court, having an attorney matters. Legal representation often makes the difference between whether someone is allowed to remain safely in the United States or is deported to harm, permanently separated from family.

Yet the immigration system does not provided court-appointed counsel to immigrants facing deportation who are unable to afford a lawyer. Only 37 percent of all immigrants and 14 percent of detained immigrants go to court with lawyers on their side, according to a 2016 American Immigration Council (AIC) study.

Immigrants who have limited English proficiency and understanding of America’s complex immigration system, including children, are forced to argue their cases in court without legal representation. In their hearings, they face adversarial government attorneys representing one of the best-resourced federal agencies, U.S. Immigration and Customs Enforcement.

Not surprisingly, individuals with counsel are more likely to pursue relief from deportation and win their cases. Immigrants who are not detained and have attorneys are five times more likely to pursue relief and are nearly five times more likely win their cases than those without attorneys, according to the AIC study. Detained immigrants are 11 times more likely to pursue relief when they have legal counsel and are twice as likely to obtain relief than detained immigrants without counsel. For children and other vulnerable populations, having a lawyer is even more critical. Among unaccompanied children with representation, a Syracuse University analysis of immigration court data shows that 73 percent are allowed to remain in the United States whereas only 15 percent of unrepresented children are allowed to stay.

Legal counsel not only ensures that immigrants receive meaningful hearings, but makes immigration court proceedings more efficient. Improving access to counsel and legal information could help decrease the immigration court backlog, which has reached an all-time high. Another Syracuse University report shows that as of November 2016, more than 526,000 immigration removal cases are pending, with cases waiting an average of 678 days for their day in court. The growing backlog, coupled with a shortage of judges and interpreters, has led to delays as long as five years for asylum seekers and other immigrants to have their first hearings.

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Recommendations

Appoint counsel for everyone in immigration proceedings. Access to counsel is critical to help people, especially children, individuals in detention, and vulnerable populations, navigate the complex immigration system.

Expand the Legal Orientation Program (LOP) and Immigration Court Helpdesks nationwide. In some detention facilities, nonprofit organizations provide Know Your Rights (KYR) or federally-funded Legal Orientation Program (LOP) presentations. A review of the LOP program found that detained individuals who have participated in LOP presentations move through the immigration court system 13 days faster than those who do not, demonstrating that access to legal information improves speedy resolution of court cases. Further, the federal Immigration Court Helpdesk program has improved access to legal information among non-detained individuals appearing in court without representation. LOP and helpdesks educate respondents about the immigration proceedings process and empowers them to make more informed decisions.